Virginia man owes $1.5 million for sharing 10 porn films

Man ignores summons for P2P case, so judge socks him with maximum penalty.

A Virginia man has been ordered to pay $1.5 million to porn publisher Flava Works for uploading 10 of its copyrighted films to peer-to-peer networks. The default judgment, entered after defendant Kywan Fisher failed to show up in court, was the maximum penalty the judge could have imposed.

Flava Works is an avid copyright litigator. In August, the firm suffered an appeals court setback in its legal battle against a "video bookmarking" site. The firm has also been suing customers like Fisher who leak copies of its videos to peer-to-peer networks.

Flava Works says it knows Fisher was responsible for illicit uploads of 10 videos because the company "has proprietary software that assigns a unique encrypted code to each member of plaintiff’s paid websites. In this case, every time the defendant downloaded a copy of a copyrighted video from plaintiff’s website, it inserts an encrypted code that is only assigned to defendant."

Fisher, a resident of Hampton, VA, didn't show up in the Illinois federal court where the lawsuit was filed. So Judge John Lee entered a default judgment against him.

In many areas of the law, damages for civil lawsuits are tied to the actual harms caused by the defendant. But copyright law has special "statutory damages" that can be assessed without considering real-world harms. Damages can be as low as $750 per infringed work. If the infringement is "willful," it can go up to $150,000. Because Fisher was accused of willfully infringing 10 works, he now owes Flava Works $1.5 million. Judge Lee's terse order doesn't explain why he opted for the maximum penalty.

TorrentFreak points out that since Flava Works claims copies of the videos Fisher uploaded were downloaded a total of 3,449 times, this works out to $435 per download—a stiff penalty indeed.

It's also dramatically higher than has been assessed in some past default judgment cases. For example, during last decade's litigation campaign by the recording industry, defendants who failed to show up for court were often assessed damages $750 per song, the legal minimum.

A guy didn't show up to an out-of-state court to defend himself against sharing porn? What. A. Surprise. The penalty is way too high for the offence, assuming he's even guilty. I guess now he'll be forced to make some movies of his own to cover his expenses.

"US Judge John Lee noted Flava's evidence in his summary and said in light of that and the lack of any defence or objection by Mr Fisher, he had no choice but to issue a default judgement in favour of the adult movie maker."

Is this true? Did the judge really have absolutely no choice but to penalize the fellow to the tune of 1.5 million? Any lawyers around?

"US Judge John Lee noted Flava's evidence in his summary and said in light of that and the lack of any defence or objection by Mr Fisher, he had no choice but to issue a default judgement in favour of the adult movie maker."

Is this true? Did the judge really have absolutely no choice but to penalize the fellow to the tune of 1.5 million? Any lawyers around?

I am not a Lawyer but I am sure we will see many more of these MAXIMUM SENTENCE type Judgements.MAFIAA and MAFIAA Like Industries will just keep Extorting us and to the tune of Big Money Fines, ETC.

1.5 Million is total Bullshit !And if I get an Extortion Letter I would do the same thing.I have no intention of ever answering one nor do I care how much they Fine me or whatever.I am dirt poor and you can not get water from a stone !

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Eh, I don't see how it matters. I ran across this story on the BBC earlier, as dsleif did, but I didn't really bother reading it there because I know the BBC generally does a poor job getting into the details on tech / copyright policy (at least, that's my opinion).

Even if Ars is reporting something other sites have gotten to, some readers (like myself) may prefer the writing style of Ars' staff, or may not want to check multiple sites every day. While it may appear redundant, it still gets the information out there to a significantly larger group of people.

I find it highly doubtful that a court in Illinois would have personal jurisdiction over a Virginia resident who probably doesn't have any significant contacts with Illinois. Most likely when the plaintiff tries to get the federal court in Virginia to enforce the ruling, if the guy is smart and hires a lawyer this time he should be able to get the default judgment thrown out on collateral attack, forcing the plaintiff to re-file the case in Virginia. That's one of the biggest problems with these mass lawsuits. The vast majority of them are in the wrong jurisdiction and easily fail the basic test for personal jurisdiction.

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

I am "Et Subscriptor" for this exact reason. Engadget/Slashdot/Etc. Is for when I want quick news. I go to Ars for the deep analysis

Damn, these cases are scary as hell. Even murderers can usually get parole, and get one with some semblance of a life. Unless you are already a millionaire these sentences will basically ruin your life!

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

Whenever possible, we try to actually read the primary sources rather than just summarizing other peoples' write-ups. One disadvantage of this approach is that we don't always get the story up first. The advantage is our version is likely to be more detailed and accurate.

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

I am "Et Subscriptor" for this exact reason. Engadget/Slashdot/Etc. Is for when I want quick news. I go to Ars for the deep analysis

IF the dude was properly served, then it's his own fault. If he couldn't make it to court, he should have written a letter to the court explaining that. If you are properly served and do absolutely nothing, no whining about the outcome please.

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

I am "Et Subscriptor" for this exact reason. Engadget/Slashdot/Etc. Is for when I want quick news. I go to Ars for the deep analysis

And have you seen their comments section? Everybody's is a little different, but Ars definitely has the most grown up crowd with the fewest trolls.

this might be a stupid question, but how do they know this is the right guy? Could not anyone have hacked his account and download the file in his name and share it? The article only mentions a code being generated, but not exactly what information is used to generate it.

this might be a stupid question, but how do they know this is the right guy? Could not anyone have hacked his account and download the file in his name and share it? The article only mentions a code being generated, but not exactly what information is used to generate it.

I was wondering this myself. It's not like porn sites are known for their security.

A few years ago, I was doing some part time work for a recycling firm, fixing returned external HDD's and the like. You'd be fucking AMAZED what people had put on those drives before returning them (while I didn't browse through, I'd access the drive as part of my testing and just the Windows-generated thumbnails / filenames screamed 'sensitive information'). I promptly wiped all files on anything I got, but someone less ethical might not. Not that it's an ultra-common scenario, but its one of many ways this guy's files could have leaked into the wild.

Screw whether he's guilty or innocent, the damn punishment is WRONG. $750 should be the MAXIMUM for non-commercial infringement not the MINIMUM. Change that part of the law and suddenly there isn't too much opposition to the law, AND you would only have copyright holders going after the most egregious abusers instead of this legal extortion racket we have now.

this might be a stupid question, but how do they know this is the right guy? Could not anyone have hacked his account and download the file in his name and share it? The article only mentions a code being generated, but not exactly what information is used to generate it.

Since the guy never responded to the summons, this is one of the many issues that wasn't litigated.

this might be a stupid question, but how do they know this is the right guy? Could not anyone have hacked his account and download the file in his name and share it? The article only mentions a code being generated, but not exactly what information is used to generate it.

If he had shown up - or even contacted the court - then perhaps he could have argued this, assuming it's what happened...

this might be a stupid question, but how do they know this is the right guy? Could not anyone have hacked his account and download the file in his name and share it? The article only mentions a code being generated, but not exactly what information is used to generate it.

precisely the argument he could have, and should have, made to the court.

but when you get served and blow it off, then you wind up with a default judgment. this demonstrates why you shouldn't do that.

Isn't Ars sharing much news that were posted a couple of hours before in sites like Gizmodo or Endgadget?

I enjoy all three websites, but I'm kind of seeing some repetition.

Have you noticed the average quality of the articles on Ars vs Engadget/Gizmodo? Usually they post a single paragraph post with more joke's then contents. Ars actually tries to cover the news, not just make bad jokes.

This only makes people aware what needs to be done before they repeat this guy's mistakes ( lets assume for a single minute he is actually guility ), just run the video in question through a program, and rewrite the codec use a different video container.

Of course I think its a load, that they are able to plant a unique id within the video container, but I would have to see the evidence. They did explain that process to the court right?

liono wrote:

can anyone comment on how this judgement might be collected from said person?

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.